Government delays clinical negligence fixed costs consultation

The government has delayed launch of its consultation on introducing fixed recoverable costs in low-value clinical negligence claims.

In a pre-consultation letter issued in early August, the Department of Health said it would be publishing the consultation this month, to close in December, so as “to support an October 2016 implementation date”.

However, responding this week to a parliamentary question from shadow solicitor-general Karl Turner, health minister Ben Gummer said it would not take place until next year.

He said: “The department is working closely with stakeholders to develop the proposal to introduce fixed recoverable costs. We have undertaken a pre-consultation exercise with a number of key stakeholders, including representatives of claimant lawyers, and are planning an open public consultation shortly. We welcome views on the proposal from all sectors.

“The consultation documentation, including the impact assessment, will be published in early 2016 subject to relevant committee clearances. We are working upon the assumption that there is nothing about fixed recoverable costs regime which will alter the percentage of unmeritorious claims.

“Any scheme proposed will include consideration of the right incentives to support a fairer and quicker process that provides the improvements to the system whilst maintaining access to justice.”

He added that in its 2014/15 annual report, the NHS Litigation Authority reported that it resolves over 4,000 clinical negligence cases annually for no payment of damages and in that year saved over £1.2bn for the NHS in rejecting claims which had no merit.

Speaking at September’s PI Futures conference in Manchester, Stephen Webber, chair of the Society of Clinical Injury Lawyers (SCIL), said he found it “hugely worrying” that the government believed a low-value medical negligence case could potentially be worth £250,000.

“If the fees are set at a ridiculously low level, and I have very little doubt that this seems to be the plan, that will move specialist lawyers out of the market and will leave it for litigants in person and for non-specialist firms which think they can operate at a low margin.

“The pre-consultation pretty much showed that whoever is considering the changes has no in-depth understanding of clinical negligence at all. The pre-consultation links the fixed fee to be set to value. That might work for personal injury, I don’t know, but it certainly doesn’t work in clinical negligence.”

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